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A-442-78
Macdonald Tobacco Inc. (Applicant) v.
Canada Employment and Immigration Commis sion (Respondent)
and
The Queen (Mis -en-cause)
Court of Appeal, Pratte and Ryan JJ. and Hyde D.J.—Montreal, January 31 and February 2, 1979.
Judicial review — Jurisdiction — Unemployment insurance — Application to set aside respondent's decision to dismiss appeal stemming from officer's rescission of premium reduc tions for three years prior to application under his consider ation — Whether or not Commission a federal tribunal — Whether or not decision made under s. 65 of the Regulations, and more precisely those made by an officer, are final quasi- judicial decisions or administrative decisions that may be altered by the body that handed them down — Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48, ss. 62, 64 — Unemployment Insurance Regulations, SOR/73-16, s. 65 — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 2, 28.
Applicant is seeking to set aside, pursuant to section 28 of the Federal Court Act, a decision handed down by respondent Commission in the exercise of the powers conferred on it by section 65 of the Unemployment Insurance Regulations. Each of applicant's applications for premium reductions for the years 1974, 1975 and 1976 had been allowed by an officer of the Commission in accordance with section 65(2) of the Regula tions, but the Commission officer examining the application for 1977 found that the insurance plan covering applicant's employees did not meet the requirements of the Regulations, and never had. The application for 1977 was dismissed, and the earlier decisions relating to 1974, 1975 and 1976 were rescind ed. Applicant challenged the officer's decision affecting 1974, 1975 and 1976, and appealed unsuccessfully to a review panel and then to the Commission itself. It is the Commission's dismissal of that appeal which appellant is challenging.
Held, the application is allowed. Respondent Commission is a federal tribunal within the meaning of section 2 of the Federal Court Act. Decisions made pursuant to section 65 of the Regulations are more than purely administrative decisions for they affect the rights of employers concerned; they must be made in accordance with precise legal standards; and finally, they are made by persons specially authorized to that end. Accordingly, they appear to be final, quasi-judicial decisions. When an officer makes a decision pursuant to section 65, he is not performing the administrative duties ordinarily delegated to him by the Commission. He is exercising a power which comes
to him, not from the Commission, but from section 65 itself. If he errs and decides incorrectly, he can no more correct his error than could a judge in similar circumstances.
APPLICATION for judicial review. COUNSEL:
Louis Lemire and Peter Richardson for applicant.
Gaspard Côté, Q.C. for respondent and mis -en-cause.
SOLICITORS:
Doheny, Mackenzie, Grivakes, Gervais & LeMoyne, Montreal, for applicant.
Deputy Attorney General of Canada for respondent and mis -en-cause.
The following is the English version of the reasons for judgment delivered orally by
PRATTE J.: Applicant is seeking to set aside, pursuant to section 28 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, a decision handed down by respondent Commission in the exercise of the powers conferred on it by section 65 of the Unemployment Insurance Regulations, SOR/73- 16.
In order to understand this case one must be familiar with certain provisions of the Unemploy ment Insurance Act, 1971, S.C. 1970-71-72, c. 48, and Regulations. This Act provides for the pay ment of two types of premiums: employee's premi ums, which must be paid by anyone holding insur- able employment, and employer's premiums, which must be paid by his employers. Under sec tion 62 the Commission must set the rates of premium each year, subject to approval by the Governor in Council. Section 64 provides, how ever, that an employer may be entitled to a reduc tion of the premium in the event that his employees are covered by an insurance plan which has the effect of reducing the benefits payable under the Act. Section 64 reads in part as follows:
64. (1) Unless another rate of premium is provided for a year pursuant to this section, the employer's premium to be paid in a year by an employer of an insured person shall be 14 times the employee's premium for that year.
(4) The Commission shall, with the approval of the Gover nor in Council, make regulations to provide a system for reducing an employer's premium payable under this Act when the payment of any allowances, monies or other benefits under a plan that covers insured persons employed by the employer, other than one established under provincial law, would have the effect of reducing the benefits that are payable to such insured persons under the Act, in respect of unemployment caused by illness or pregnancy, if insured persons employed by the employer will benefit from the reduction of the employer's premium in an amount at least equal to five-twelfths of the reduction.
(5) The Commission shall, with the approval of the Gover nor in Council, make regulations to provide a system for reducing the premium payable under this Act when the pay ment of any allowances, monies or other benefits under a provincial law to insured persons in respect of sickness or pregnancy would have the effect of reducing or eliminating the benefits that are payable under this Act to such insured persons in respect of unemployment caused by illness or pregnancy.
(6) For the purposes of subsections (4) and (5), the Commis sion may, with the approval of the Governor in Council, make regulations
(a) prescribing the manner and time for making an applica tion for a premium reduction;
(b) prescribing the standards that must be met by a plan to qualify for a premium reduction and the time during which such plan must be in effect;
(c) prescribing the method for determining the amount of reduction for plans of given standards and the use to be made of actuarial calculations and estimates;
(d) providing for the making of decisions relating to premi um reduction and appeals therefrom in cases of dispute;
(e) prescribing the manner in which the insured persons will be reported by employers to the Department of National Revenue, Taxation; and
(j) generally, providing for any other matters necessary for carrying out the purposes and provisions of subsections (4) and (5).
Exercising the regulatory power conferred on it by subsection 64(6), the Commission enacted sections 58 et seq. of the Unemployment Insurance Regulations. These sections provide, first, that an employer whose employees are covered by an in surance plan meeting certain requirements is en titled to a reduction of the premium. Section 65 then provides that an employer wishing to benefit from such a reduction must submit an application. This provision reads as follows:
65. (1) Every application for a reduction of the employer's premium referred to in subsection 59(1) or 60(1) shall be in a form approved by the Commission, be accompanied by such
documents and information as the Commission may require and be made
(a) on or before the 30th day of September next before the first day of the first year for which a reduction is applied for; or
(b) at such time as the Commission may direct before the first day of each subsequent consecutive year for which a reduction is applied for.
(2) Upon receiving an application for a reduction of an employer's premium, an officer of the Commission shall decide whether or not a reduction shall be made.
(3) An employer may, within thirty days of the mailing of a notice of a decision made pursuant to subsection (2), or within such further time as the Commission may allow, apply for a review of the decision by a review panel consisting of officers designated by the Commission.
(4) An employer who is not satisfied with the decision of the review panel referred to in subsection (3) may appeal to the Commission for a final determination of the question.
I come now to the facts which gave rise to the case.
Every year since 1973 applicant has applied for a reduction of its premiums in accordance with section 65 of the Regulations. Thus, it submitted applications for 1974, 1975 and 1976. Each of these applications was allowed by an officer of the Commission in accordance with subsection 65(2). In 1976 applicant submitted another application for a reduction, this time for 1977. The Commis sion officer who examined this application found that the insurance plan covering applicant's employees did not meet the requirements of the Regulations, and never had. He therefore dis missed the application, and in addition rescinded the earlier decisions relating to 1974, 1975 and 1976, holding that applicant had not been entitled to a reduction of its premiums for those years. Applicant acquiesced in the dismissal of its application for 1977. There was no doubt that the insurance plan covering its employees did not meet the requirements of the Regulations. However, applicant challenged the decision of the officer rescinding the decisions affecting 1974, 1975 and 1976, and it first appealed unsuccessfully to the review panel mentioned in subsection 65(3) of the Regulations, and then to the Commission itself, as it was authorized to do by subsection 65(4). It is the decision of the Commission dismissing that appeal which applicant is now challenging.
Counsel for the applicant maintained that the Commission's decision was vitiated by an error of law, because it affirmed a decision which had been unlawfully made, since the officer making it was not entitled to revoke decisions already handed down for the years prior to 1977. In support of this argument he cited the well-known rule that, in the absence of express provisions to the contrary, a body vested with judicial or quasi-judicial author ity does not have the power to revise and alter decisions which it has rendered (see La Cité de Jonquière v. Munger [1964] S.C.R. 45; Payment v. Académie de musique de Québec (1935) 59 Q.B. 121; In re 56 Denton Road, Twickenham [1953] 1 Ch. 51). He argued that the decisions already made for 1974, 1975 and 1976 were quasi- judicial decisions, and accordingly could not be revoked.
Counsel for the respondent, however, argued that the application should be dismissed because respondent Commission was not a federal tribunal within the meaning of section 2 of the Federal Court Act, and because decisions made pursuant to section 65 of the Regulations are purely administrative decisions, which the Court has no power to review under section 28 and which, in any case, lack the finality characteristic of judicial decisions.
I think it is clear that respondent Commission is a federal tribunal within the meaning of section 2 of the Federal Court Act. I do not see how it is possible to maintain the contrary by relying, as does counsel for the respondent, on the provision of the Act (S.C. 1976-77, c. 54, s. 10) which states that the Commission "is for all purposes an agent of Her Majesty in right of Canada and its powers may be exercised only as agent of Her Majesty in such right". In my view, the fact that the Commis sion is an agent of Her Majesty does not prevent it from being within the definition given by section 2 to the phrase "federal board, commission or other tribunal", and being a "body ... exercising ... jurisdiction or powers conferred by or under an Act of the Parliament of Canada ...".
The argument that the decision a quo cannot be reviewed pursuant to section 28, because it is a purely administrative decision "not made on a judicial or quasi-judicial basis", also appears to me to be without foundation. Even if the power of the Commission to decide an appeal pursuant to sub section 65(4) of the Regulations were an adminis trative power, the exercise of that power would still be, in my opinion, "made on a judicial or quasi-judicial basis", that is, in keeping with the procedural requirements imposed by the principles of natural justice.
The most difficult question raised by this case is whether decisions made under section 65 of the Regulations, more precisely those made by an officer in accordance with subsection (2) of that section, are final, quasi-judicial decisions or administrative decisions that may be altered at any time by the body which handed them down. Coun sel for the respondent argued that these are administrative decisions, which are no more judi cial or final than the Minister's decision to assess a taxpayer under the Income Tax Act (see Pure Spring Co. Ltd. v. M.N.R. [1946] Ex.C.R. 471). The function of an officer deciding on an applica tion for a reduction pursuant to subsection 65(2) is solely, he emphasized, to ascertain whether the insurance plan covering the applicant employer's employees is in accordance with the requirements of the Act: if it is, the officer must allow the reduction; if it is not, he must deny it. This absence of discretion indicates—so runs counsel for the respondent's argument—that the decision was of a purely administrative nature.
It is true that the officer making a decision pursuant to subsection 65(2) does not enjoy any discretion. However, that does not help respond ent's case in any way; rather the contrary, as it is usual to regard an administrative decision as char acterized by its discretionary nature, since the person making it enjoys a discretion which is not ordinarily conferred on a judge, who decides by reference to precise, pre-existing rules.
In my opinion, and I arrived at this decision after a great deal of hesitation, decisions made pursuant to section 65 of the Regulations are more
than purely administrative decisions. After the preceding sections of the Regulations have indicat ed the cases in which an employer is entitled to a reduction in the premiums, section 65 empowers certain persons to decide, in each case where an employer applies for a reduction, "whether or not a reduction shall be made". Decisions handed down pursuant to this section affect the rights of the employers concerned; they must be made in accordance with precise legal standards; finally, they are made by persons specially authorized to that end. Accordingly, they appear to me to be final, quasi-judicial decisions. When an officer makes a decision pursuant to section 65, he is not performing the administrative duties ordinarily delegated to him by the Commission. He is exer cising a power which comes to him, not from the Commission, but from section 65 itself. This power is that of deciding "whether or not a reduction shall be made". If he errs and decides incorrectly, in my view he can no more correct his error than could a judge in similar circumstances.
I would therefore allow the application, set aside the decision a quo and return the case to the Commission for it to be decided on the assumption that the decision of the officer, revoking the deci sions relating to 1974, 1975 and 1976, is unlawful.
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RYAN J. concurred.
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HYDE D.J. concurred.
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